The Australian Competition and Consumer Commission will oppose Woolworths Limited's application to the High Court of Australia for orders preventing the production of relevant documents to an ACCC liquor investigation, which are claimed to be subject to legal professional privilege.
"The ACCC sought the documents in relation to a major investigation of alleged anti-competitive agreements which have restricted liquor trading", ACCC Chairman, Professor Allan Fels, said today.
"The ACCC has initiated a major investigation into allegations of anti-competitive agreements between proprietors of licensed premises. The investigation follows complaints received by the ACCC that established bottleshop operators have been trying to ensure that new operators of hotels do not compete against them by requiring the new operators to enter agreements which prevent them from:
- ever opening a competing bottleshop or driveway facility for the sale of takeaway liquor
- selling takeaway liquor over the counter to hotel patrons
- advertising or conducting promotions for the sale of takeaway liquor over the counter to hotel patrons
- preventing the hotel from home delivery of takeaway liquor, eg for parties, functions or home consumption
"The ACCC views the claims that liquor retailers may have entered into anti-competitive arrangements as serious. The ACCC fears that, if true, these alleged agreements may have forced consumers to pay higher prices for take-away liquor and to have less choice and convenience due to fewer competing liquor outlets.
"Since the Full Federal Court decision in Daniels the ACCC has sought, in limited circumstances, production of documents which may be the subject of legal professional privilege.
"The ACCC will, where access to such documents is necessary for the ACCC to properly investigate alleged breaches of the Act and determine the seriousness of such conduct, seek the production of privileged documents. In the liquor investigation, where the ACCC is considering among other things, the possible involvement by members of the legal profession in possible contraventions of the Act, access to privileged documents is particularly important.
"As part of this investigation the ACCC issued section 155(1)(a) and (b) Notices on Woolworths Limited, Coles Myer Ltd and Liquorland (Australia) Pty Ltd (a subsidiary of Coles Myer). The notices required these companies to provide relevant information and documents, including documents which may be the subject of legal professional privilege.
"The ACCC yesterday was notified by Woolworths that it had applied to the High Court for orders to prevent the production of legally professionally privileged documents. Coles Myer through its legal representatives has indicated to the ACCC that it will take similar action.
"In March 2001, the Full Federal Court in the Daniels case upheld the ACCC's earlier claim that its powers under section 155 of the Trade Practices Act 1974 to gain access to relevant documents, extends to relevant documents which are subject to legal professional privilege. This decision is subject to a special leave to appeal application to the High Court of Australia.
"The ACCC will be cooperating fully with Coles Myer and Woolworths in their High Court applications, so as to expedite the hearing of their claims that production of privileged documents should be deferred pending the High Court decision in the Daniels case.
"The ACCC repeats its call for assistance from applicants for liquor licences in its investigation".